Chief Justice Scalia?

Rehnquist Illness Sparks Rumors

Rumors arecirculating in Washington that Supreme Court Justice Antonin Scalia may have his eye on a promotion – to chief justice.

The current chief justice, William H. Rehnquist, suffers from thyroid cancer, and it is widely believed he will soon step down. That move will give President George W. Bush two slots to fill – he’ll have to decide which justice will move up to chief and then replace that person. (Bush could name a new chief justice from outside the court, but that is considered unlikely.)

Some justices can safely be considered out of the running. John Paul Stevens is 84 years old and a liberal. Ruth Bader Ginsburg and Stephen G. Breyer were appointed by President Bill Clinton. David H. Souter was appointed by Bush’s father but has infuriated the right wing by championing the separation of church and state.

Appointing Sandra Day O’Connor might seem like a good move because it would give Bush an opportunity to name the first woman chief justice. But O’Connor has had health problems herself and is rumored to be interested in stepping down from the court. She’s also considered too moderate on abortion. Anthony M. Kennedy isn’t likely to go anywhere, but he has angered the Religious Right with his votes in favor of legal abortion and gay rights and against school-sponsored prayer.

That leaves Scalia and Clarence Thomas. Thomas’ name has been bandied about by his fans, and appointing him would allow Bush to put an African American into a prominent slot, but there could be one problem: Thomas reportedly does not want the job.

Washington Post Supreme Court reporter Charles Lane reported Jan. 30 that Thomas, who went through a tough Senate confirmation battle in 1991 after allegations of sexual harassment surfaced, is not eager to revisit any of that. (Appointment as chief justice requires Senate confirmation.)

Lane says an informal “Scalia for chief justice” boomlet is under way – and Scalia may be leading it. He noted that the normally combative justice put on a kinder, gentler face recently when he agreed to discuss international law Jan. 13 at American University with fellow justice Breyer. The normally media-shy Scalia even agreed to allow the event to be televised.

Some court-watchers say appointing Scalia to the top job has another benefit: Democrats in the Senate and moderate-to-liberal interest groups would focus their attention on derailing his nomination. Meanwhile, Bush could move a hard-right conservative into Scalia’s old slot with less attention paid.

It has happened before. President Ronald Reagan nominated Rehnquist as chief justice when Warren Burger stepped down in 1986. Opponents focused their fire on Rehnquist. Meanwhile, Scalia, who had been nominated to take Rehnquist’s old seat, waltzed onto the court unopposed, 98-0. (Americans United testified against Scalia’s confirmation.)

Scalia can’t lobby for the job outright, but some observers note that he seems to be going out of his way to appear less antagonistic these days. In the past, Scalia’s big mouth has gotten him into trouble. In 2003, he complained about a lawsuit challenging “under God” in the Pledge of Allegiance during a speech in Virginia. When the case reached the high court, Scalia had to recuse himself since he appeared to have pre-judged the case. He now refrains from talking about specific cases during speeches.

Scalia may also be working to smooth over his often stormy relationship with the media. Lane reported that Scalia recently sent a personal thank-you note to Tony Mauro, a legal correspondent at American Lawyer Media, after Mauro ran an opinion piece by Scalia’s son, an Army captain who served in Iraq.

It was a far cry from the last time Scalia had contact with Mauro. In 2000, Scalia was so upset about an article Mauro wrote about him that he sent a letter to the editor, referring to the journalist as “Mauronic.”

As chief justice, Scalia would have the same single vote he has now, but the position carries great symbolic power and offers one irresistible intangible benefit: the promise of a legacy. If the elevation comes to pass, law students in the year 2050 would study the decisions handed down by the “Scalia Court.” For a man who reportedly has a large ego, that should be more than enough reason to covet the job.